[Federal Register: May 12, 2003 (Volume 68, Number 91)]
[Notices]
[Page 25357-25359]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my03-47]
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DEPARTMENT OF EDUCATION
Regulatory Flexibility Act
AGENCY: Department of Education.
ACTION: Notice of procedures and policies.
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SUMMARY: This notice announces Department of Education procedures and
policies to promote compliance with the Regulatory Flexibility Act.
This notice is issued in accordance with Executive Order 13272 on
``Proper Consideration of Small Entities in Agency Rulemaking.''
Executive Order 13272 provides that draft rules must be thoroughly
reviewed ``to assess and take appropriate account of the potential
impact on small businesses, small governmental jurisdictions, and small
organizations.''
FOR FURTHER INFORMATION CONTACT: Kenneth C. Depew, Office of the
General Counsel, U.S. Department of Education, 400 Maryland Avenue,
SW., room 6E227, Washington, DC 20202-2241. Telephone: (202) 401-8300.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed
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under FOR FURTHER INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: The Regulatory Flexibility Act, as amended
(Act), 5 U.S.C. 601 et seq., applies, with certain limited exceptions,
to any rule for which an agency issues a notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b) or any other law, including any rule of
general applicability governing Federal grants to State and local
governments for which the agency provides an opportunity for notice and
public comment.
Except in those cases that the Secretary of Education can certify
the rule will not, if promulgated, have a significant economic impact
on a substantial number of small entities, the Department must publish
an initial regulatory flexibility analysis (IRFA) or a summary of an
IRFA in the Federal Register with the proposed rule. A final regulatory
flexibility analysis (FRFA) or a summary of an FRFA must be published
with the final rule.
The IRFA must include the following:
(1) A description of the reasons why action by the Department is
being considered;
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
The FRFA must include the following:
(1) A succinct statement of the need for, and objectives of, the
rule;
(2) A summary of the significant issues raised by the public
comments in response to the IRFA, a summary of the assessment of the
Department of such issues, and a statement of any changes made in the
proposed rule as a result of such comments;
(3) A description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
(4) A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
(5) A description of the steps the Department has taken to minimize
the significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the Department which affect the
impact on small entities was rejected.
Notice to Public
Semiannually, under section 602 of the Act, the Department
publishes an Agenda of Federal Regulatory and Deregulatory Actions,
which contains a list of all rules currently under development or
review. The purpose of the agenda is to encourage more effective public
participation in the regulatory process by providing the public with
early information about pending regulatory activities.
For each rule listed, the agenda provides the following
information:
[sbull] An abstract, which includes a description of the problem to
be addressed, any principal alternatives being considered, and
potential costs and benefits of the action.
[sbull] An indication of whether the planned action is likely to
have a significant economic impact on a substantial number of small
entities as defined by the Act.
[sbull] A reference to where the reader can find any current
regulations in the Code of Federal Regulations.
[sbull] A citation of legal authority.
[sbull] The name, address, and telephone number of the contact
person at the Department from whom a reader can obtain additional
information regarding the planned regulatory action.
In addition, the Department publishes its Regulatory Plan on an
annual basis. The plan contains a statement of the Department's
regulatory and deregulatory priorities for the coming year.
In order to provide information and support enhanced exchange, the
Department has instituted 1-800-USA-LEARN (1-800-872-5327) to connect
our customers to a center for information about departmental programs
and initiatives; 1-800-4FED-AID (1-800-433-3243) for information on
student aid; and an on-line library of information on education
legislation, research, statistics, and promising programs.
The Department has an impressive record of successful communication
and shared policy development with affected persons and groups,
including parents, students, educators, representatives of State and
local governments, neighborhood groups, schools, colleges, special
education and rehabilitation service providers, professional
associations, advocacy organizations, business, and labor.
In particular, the Department continues to seek greater and more
useful customer participation in its rulemaking activities through the
use of consensual (negotiated) rulemaking and new technology. When
rulemaking is determined to be absolutely necessary, customer
participation is essential and sought at all stages--in advance of
formal rulemaking, during rulemaking, and after rulemaking is
completed--in anticipation of further improvements through statutory or
regulatory changes. The Department has expanded its outreach efforts
through the use of satellite broadcasts, electronic bulletin boards,
and teleconferencing. For example, the Department invites comments on
all proposed regulations through the Internet.
The Department is streamlining information collections, reducing
burden on information providers involved in our programs, and making
information maintained by the Department easily available to the
public. To the extent permitted by statute, regulations are being
revised to eliminate barriers that inhibit coordination across programs
(such as by creating common definitions), to reduce the frequency of
reports, and to eliminate unnecessary data requirements.
The Department has also piloted the use of two new Internet-based
software applications, e-Application and e-Reports, that enable
applicants, grantees, and grant teams to process applications and file
performance reports online, and we have received positive feedback from
participants in the pilot programs. Our goal over time is to encourage
applicants and grantees to make electronic commerce, or the process of
conducting business over the Internet, their preferred method of doing
business with the Department.
Periodic Review of Rules
Section 610 of the Act requires review of existing rules within 10
years of the
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effective date of the Act and review of rules adopted after the
effective date within 10 years of the adoption of the final rule. The
purpose of the reviews is to determine if these rules should be
continued without change, or should be amended or rescinded, consistent
with the stated objectives of applicable statutes, to minimize any
significant economic impact of the rules upon a substantial number of
small entities. The Department considers the following factors in
reviewing the rules:
[sbull] The continued need for the rule.
[sbull] The nature of complaints or comments received concerning
the rule from the public.
[sbull] The complexity of the rule.
[sbull] The extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules, and to the extent feasible, with
State and local governmental rules.
[sbull] The length of time since the rule has been evaluated or the
degree to which technology, economic conditions, or other factors have
changed in the area affected by the rule.
In accordance with section 610, on August 5, 1981 (46 FR 39882),
the Department published a notice of its plan for review of its rules
that might have a significant economic impact upon a substantial number
of small entities. The plan for review established a deadline of
January 1, 1991, for completing the review of all rules existing on
January 1, 1981, and the Department met this deadline.
The Department has reviewed all rules published after January 1,
1981, prior to publication to determine if the rule would have a
significant economic impact upon a substantial number of small
entities. Periodic enactment of reauthorizing legislation for
Department programs therefore ensures a review of existing regulations
under section 610 at least every four or five years.
Review of All Proposed and Final Rules
It is the policy of the Secretary of Education that all proposed
and final rules be thoroughly reviewed to assess their impact on small
entities. To ensure this review, the Department has established a
clearance process for all regulatory documents managed by the Division
of Regulatory Services (DRS) in the Office of the General Counsel.
While it is Department policy to regulate only when absolutely
necessary and in the least burdensome way possible, it is necessary for
the Department to issue a limited number of proposed and final rules
each year. Each rule is carefully screened under the Act to determine
if it will have an impact on any small entities and, if so, what this
impact will be.
In most cases the analysis supports a determination the rule can be
certified by the Secretary as not having a significant economic impact
upon a substantial number of small entities. The certification and a
supporting explanation are then included with both the proposed and
final rules.
For a proposed rule with a certification by the Secretary, all of
the comments received are carefully screened to determine if any of
them specifically address the certification or relate to the
consequences of the rule or the alternatives considered by the
Department. If comments are received on the certification or the
supporting rationale for the certification, the Department analyzes the
impact of the rule on small entities in light of the additional
information provided by the commenters, prepares an appropriate
response to the comments, and certifies the final rule or prepares a
regulatory impact analysis, as appropriate.
A significant rule, following Department clearance, is also sent to
the Office of Management and Budget (OMB) for further review under
Executive Order 12866 (Regulatory Planning and Review). Similarly, a
draft rule that has a significant economic impact on a substantial
number of small entities under the Act will be sent to the Small
Business Administration Office of Advocacy (Advocacy), and Advocacy
comments will be given appropriate consideration by the Department, as
required by Executive Order 13272. As necessary, OMB may consult with
Advocacy on the impact on small entities under the March 29, 2002,
Memorandum of Understanding between those offices.
For those rules where a certification is not supported by the
analysis of the impact on small entities, the Department prepares an
IRFA and FRFA, as appropriate, in accordance with the following
procedures.
Procedures for Compliance With the Regulatory Flexibility Act and
Executive Order 13272
(1) Determine whether the rule is subject to the Act. Generally,
the Act applies in all cases in which the Department is required to
publish a notice of proposed rulemaking (NPRM).
(2) If the rule is subject to the Act, prepare an IRFA for the rule
incorporating the necessary information. Some of this information will
be available from the initial analysis of the proposed rule and the
preamble to the NPRM, other information will require identifying the
specific actions a small entity must take in order to comply with the
rule.
(3) Notify the Chief Counsel for Advocacy of the Small Business
Administration (SBA) and provide a copy of the draft NPRM and IRFA a
reasonable time prior to publication. This notification will usually
occur at the time the draft NPRM is submitted to the Office of
Management and Budget for review under Executive Order 12866.
(4) Publish the IRFA or a summary of the IRFA with the NPRM in the
Federal Register. Unless the IRFA is extremely lengthy or complex, it
is preferable to publish the entire analysis rather than a summary.
(5) In preparing the final rule, consider and respond to all
comments on the impact of the rule on small entities, including
comments from the SBA.
If a determination is made at this time that the rule will not have
a significant economic impact on a substantial number of small
entities, a certification and statement of factual basis of support may
be included with the final rule. Otherwise, a FRFA incorporating the
required information must be prepared. Publish the FRFA or a summary in
the Federal Register with the final rule. Unless the FRFA is extremely
lengthy or complex, it is preferable to publish the entire analysis
rather than a summary.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/legislation/FedRegister/.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is published in the
Federal Register. Free Internet access to the official edition of
the Federal Register and the Code of Federal Regulations is
available on GPO Access at: http://www.access.gpo.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number does not apply.)
Dated: May 6, 2003.
Rod Paige,
Secretary of Education.
[FR Doc. 03-11762 Filed 5-9-03; 8:45 am]
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